Caught in the Marriage Mess

Child custody or visitation disputes incidental to divorce actions are probably more the rule than the exception.

Child custody or visitation
disputes incidental to divorce actions are probably more the rule than the
exception.

It isn’t even all that unusual for
a party that feels deeply aggrieved by a court’s resolution of the issues to
seek a more favorable result in another state. Although such tactics once
offered a reasonable chance of success, federal and state legislation now
severely limit the prospects of having the courts of one state upset a custody
or visitation order lawfully made by the courts of another.

There is nothing ordinary,
however, about a visitation dispute involving a 4-year-old girl that is
currently pending simultaneously in the courts of both Vermont
and Virginia.
In fact, the legal issues underlying the bitter controversy are so unique that
the case may well culminate in a ruling by the U.S. Supreme Court on whether
and to what extent the courts of one state must recognize civil unions
sanctioned in another. If this occurs, the implications for similar recognition
of same-sex “marriages” are inescapable.

Lisa Miller-Jenkins and Janet
Miller-Jenkins lived together in Virginia
for several years. When Vermont
authorized civil unions in 2000, the two traveled to that state and entered
into such an arrangement.

The following year, Lisa was
artificially inseminated with the sperm of an anonymous donor and, in April,
2002, gave birth to a daughter named Isabella. The women and Isabella lived
together in Virginia until moving to Vermont in August 2002.
A year later, they decided to separate, and Lisa and her daughter moved back to
Virginia.

In November 2003, Lisa brought an
action to dissolve the civil union in a Vermont
family court, describing Isabella as the “biological or adoptive child of the
civil union.” In June 2004, the court awarded Lisa temporary custody of the
child and gave Janet visitation rights. Elevating Janet to the status of a
parent, the court designated her visitation as “parent-child contact.”

The first court-ordered visitation
for Janet occurred without incident. Thereafter, however, Lisa refused to allow
her former partner to have any contact whatsoever with the child. Instead, Lisa
disavowed homosexuality and filed a petition in the Virginia Circuit Court to
determine the child’s parentage. The Vermont
family court responded by declaring that it would not cede jurisdiction to the Virginia courts and, on
Sept. 2, 2004, found Lisa to be in contempt of court for willfully disobeying
the visitation awarded to Janet.

On Sept. 9, 2004, the Virginia court ruled that any rights accorded to Janet by
the Vermont court were null and void in Virginia because that
state does not recognize civil unions. A month later, the Virginia court flatly declared that Lisa is
the “sole biological and natural parent” of the child and that Janet has no
“claims to parentage or visitation” regarding Isabella.

Janet appealed that ruling to the
Virginia Court of Appeals, where the matter is currently pending. Meanwhile, in
August of this year, the Supreme Court of Vermont unanimously upheld the
contempt finding against Lisa and declared that Virginia has no jurisdiction over the case.
Unless the Virginia
appellate courts agree with that conclusion, the case is headed for the federal
courts, with the distinct possibility of eventual review by the U.S. Supreme
Court.

Supporters of civil unions and
same-sex “marriages” are lining up solidly behind the Vermont courts. In an Aug. 9, 2006, editorial,
The Washington Post noted that
Isabella “has two mommies,” which “isn’t a big deal these days, and it
shouldn’t be.” The editorial then condemned the Virginia court’s decision as “legally flawed
and morally reprehensible.”

The truth, however, is that this
is an extraordinarily complicated case with novel legal issues not readily
amenable to resolution under standard legal principles governing interstate
custody and visitation disputes. The applicable statutes are the Uniform Child
Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act.

Both set forth detailed criteria
for the resolution of jurisdictional issues in interstate custody and
visitation contests. In this case, they would clearly favor Vermont’s claim to jurisdiction if — and
this is the key point — the case involved a traditional marriage instead of a
civil union.

The judges on the Vermont Supreme
Court appear to have initially decided that they wanted to retain jurisdiction
over the dispute and then crafted an opinion designed to accomplish that
result. The critical error in the court’s opinion is that it fails to address
the weighty consequences of reflexively applying statutes governing traditional
interstate marriage disputes to those involving civil unions. This failing is
especially remarkable since only one other state, Connecticut, authorizes civil unions.

The Virginia Court was faced with
the reality that its Marriage Affirmation Act expressly prohibits recognition
of same-sex relationships, including civil unions. In refusing to accept the
parentage finding emanating from the Vermont
civil union, the Virginia
court was applying a law that reflects its own state’s clear public policy.

It is hardly axiomatic, therefore,
that the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping
Prevention Act must be blindly applied by every state to orders issued
incidental to the dissolution of civil unions. Such a result, which advocates
of same-sex relationships would dearly love to achieve, would bring the country
one step closer to requiring every state to recognize not only civil unions but
same-sex “marriages.”

Article 4, Section 1 of the U.S.
Constitution provides, “Full faith and credit shall be given in each state to
the public acts, records and judicial proceedings of every other state.” The
U.S. Supreme Court has acknowledged an exception to this mandate, which allows
a state to refuse to credit those acts of another state that contravene its own
public policy.

Similarly, the Defense of Marriage
Act (DOMA), which defines marriage as “a legal union of one man and one woman
as husband and wife,” specifically provides that states need not recognize
same-sex “marriages” performed in another state. Yet, homosexual rights
advocates are certain to argue that the public policy exception shouldn’t
extend to civil unions or same-sex “marriages,” and that the Defense of
Marriage Act is an unconstitutional infringement on the scope of the full faith
and credit clause. Given the mischief created by a judiciary that is too often
agenda-driven, it is foolhardy to assume that these arguments can’t prevail.

Admittedly, even if the Supreme
Court does eventually hear this case and rules in favor of Vermont’s jurisdiction, it wouldn’t
necessarily mean that recognition of civil unions or same-sex “marriages” is
destined to be judicially mandated of every state. That possibility, however,
makes this bitter interstate dispute so important.

It also provides a solid reason to
resurrect the recently defeated Federal Marriage Amendment to the U.S.
Constitution that defines marriage as a union of one man and one woman.

Opposition to the amendment came
largely from Senate Democrats who, while claiming that it was superfluous in
light of the Defense of Marriage Act and the public policy exception to the
full faith and credit clause, were probably playing to their increasingly
demanding homosexual rights constituency.

Traditional marriage is under
unprecedented attack and needs constitutional protection. In the absence of
this ultimate safeguard, its defenders will have to hold their collective
breaths every time cases involving same-sex relationships such as the
Vermont-Virginia dispute await judicial resolution.

Daniel D. Leddy, a former New York State Family
Court Judge, has written extensively on family law and constitutional law. His
weekly column,

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